Decision #140/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 14, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In February 2003, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred during her employment activities as a family support worker on March 6, 2002. On the day of accident, the worker claimed that she was working with a set of twins and when she lifted one to place into the crib she felt "something in her back."

The worker indicated that she missed time from work between March 7 to 10, 2002 and returned to work on March 11, 2002. She indicated that if her back was sore, she would take a couple of days off and then would go back to work. She continued working until August 25, 2002. Her doctor then wrote to the employer and asked for lighter duties. The employer refused and told her to go onto disability. When speaking with her union representative on February 21, 2003, he enquired as to why she did not apply for WCB benefits. The worker stated that she did not realize that she could claim with the WCB.

On April 1, 2003, a WCB case manager recorded that she spoke with worker's co-ordinator. The co-ordinator could not recall the worker telling her about a work injury but the worker did speak about having back pain in the past.

Medical information on file revealed the following:
  • CT of the lumbosacral spine dated June 13, 2002 - The impression was "Central L4-L5 disc herniation. Small right foraminal L5-S1 disc herniation."
  • Medical certificate dated August 19, 2002 stated that the worker "has been having problems with sciatic back pain; she should avoid heavy lifting or repetitive movements - i.e. may do light duties effective until Oct. 1/02."
  • August 28, 2002 - the treating physician wrote to the employer indicating that the worker had been having problems with her back since March of this year. He recommended light duties of no heavy lifting as the worker's back pain was increasing in intensity.
  • September 13, 2002 - a physical medicine and rehabilitation specialist (a physiatrist) reported that he saw the worker approximately three years ago and she was doing reasonably well at that time. Shortly after that visit, she began to have increased right sciatica which had been intermittent over the last three years but her symptoms have generally increased. The physiatrist stated that the current findings were suggestive of ongoing nerve root irritation. It was suspected that the L5-S1 disc herniation was symptomatic.
  • Hospital Emergency Report (date of admission was November 8, 2002) - indicated that the worker injured her back in a motor vehicle accident 3 years prior and has had problems since.
  • November 15, 2002 - a neurosurgeon reported that he saw the worker on this date for "a symptom complex consisting of back pain and bilateral leg pain and dysesthesias." The specialist noted that the worker's history dated back to about three years ago when she was involved in a motor vehicle accident.
  • Diagnostic test results consisted of lumbosacral spine x-rays dated November 15, 2002, a CT myelogram dated December 10, 2002 and an MRI of the lumbar spine dated February 5, 2003.
  • February 12, 2003 - the treating neurosurgeon indicated he could not account for the worker's symptoms and could not make any surgical recommendations.
  • April 1, 2003 - the treating physician outlines his examination findings and treatment of the worker between March 6, 2002 through to March 28, 2003.
  • April 4, 2003 - the treating physiatrist provided the WCB with a narrative report outlining his examination findings and treatment recommendations with respect to the worker's back condition commencing in September 2002.
On April 14, 2003, a WCB adjudicator informed the worker that her claim for a lower back injury occurring on March 6, 2002 had been denied based on the following factors:
  1. When the worker saw her treating physician on March 6, 2002, she did not report a specific injury occurring, but rather, she provided a one week history of tingling in her left foot while bending;
  2. Medical reports show that the worker has chronic back difficulties;
  3. The employer was not aware of an injury occurring at work on March 6, 2002.
On June 3, 2003, the worker asked the WCB adjudicator to consider the following new information:
  • a letter from her treating physician dated May 6, 2003;
  • a letter from a witness dated May 23, 2003;
  • copies of time sheets, job description; sections of a collective agreement, etc.
  • errors and disagreements that she noted of the statements made by her co-ordinator.
After reviewing the above information, the adjudicator advised the worker on July 8, 2003, that no change would be made to the decision of April 14, 2003.

On July 21, 2003, the worker contacted the WCB concerning her claim. The adjudicator confirmed that he could not establish a non-specific injury occurring in March 2002 due to the worker's history of back symptoms dating back to a motor vehicle accident. The worker then stated that her symptoms started on June 6, 2000 after she lifted a child and that she sought medical treatment on June 12, 2000. The worker said she was involved in a motor vehicle accident in June of 1999 and it was a whip-lash type injury to her neck and that she had no problems with her back. The worker indicated that she was now claiming for a specific injury in June 2000.

In a decision of December 12, 2003, the worker was advised that the WCB attempted to contact her employer to confirm reporting issues related to the June 6, 2000 injury. The WCB, however, was unable to confirm that an accident occurred at work on June 6, 2000. Based on this determination, the WCB was unable to accept responsibility for the claim.

On March 10, 2004, a worker advisor asked the WCB to reconsider its decision of December 12, 2003 based on new medical information received from an occupational health physician dated February 25, 2004. The worker advisor contended that the specialist supported a relationship between the worker's current condition and those of her duties as a family support worker. After considering the new medical information on May 12, 2004, a WCB adjudicator determined that no change would be made to the previous WCB decisions. On November 25, 2004, the worker advisor appealed the May 12, 2004 decision to Review Office.

In a decision dated December 23, 2004, Review Office confirmed that the claims for accidents occurring on June 6, 2000 and March 6, 2002 were not acceptable and that the claim for a non-specific injury occurring in March 2002 was not acceptable. Based on a review of all the file information including medical reports, Review Office was unable to establish that the worker's back complaints were due to any work related injuries incurred in the workplace. On March 2, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Subsection 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes
  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises
      out of, and in the course of, employment, and
  3. an occupational disease
and as a result of which a worker is injured."

The evidence confirms that the worker has had long standing back problems prior to any of her claimed work related incidents. The worker's medical history from 1999 to the present substantiates that her low back difficulties continued to increase over time whether or not she was at or away from the workplace. We note that the worker has not worked since August of 2002.

Although the medical evidence on file demonstrates long standing low back pain and degenerative disc disease, we nevertheless find that neither of these conditions were caused, aggravated and/or enhanced by her job duties or a specific work incident. We further find based on a preponderance of evidence that the worker's claim is not acceptable.

We have some concerns about the late reporting of the alleged accident, not only by the worker, but also by the treating physician. We note that the worker has had several prior claims with the WCB and as such she was aware or should have been aware of the proper process of initiating a claim. With respect to her recent claim, the evidence discloses that the worker initially filed claims with employment insurance and with a private long term disability insurer, which were both turned down. The worker's actions suggest to us that she did not seriously consider her alleged injury to be work related.

The worker presented argument that proper reporting of her alleged incident in accordance with section 17 of the Act should be waived. We do not agree given the worker's previous contacts with the WCB and the compensation system.

The worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of August, 2005

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